GLP18 v Minister for Home Affairs

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

GLP18 v Minister for Home Affairs [2024] FedCFamC2G 756

File number: SYG 3475 of 2018
Judgment of: JUDGE BLAKE
Date of judgment: 21 August 2024
Catchwords: MIGRATION – Application for judicial review – failure to consider claim or component integers of claim – claim as advanced was considered – application dismissed.  
Legislation: Migration Act 1958 (Cth) s 57, Pt 7AA.
Cases cited:

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26

Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 24

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
Division: Division 2 General Federal Law
Number of paragraphs: 34
Date of hearing: 21 May 2024
Place: Melbourne via Microsoft Teams
Counsel for the Applicant: Mr Reynolds
Solicitor for the Applicant: Asad Lawyers
Counsel for the Respondents: Mr Johnson
Solicitor for the Respondents: HWL Ebsworth Lawyers

ORDERS

SYG 3475 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

GLP18

Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

JUDGE BLAKE

DATE OF ORDER:

21 AUGUST 2024

THE COURT ORDERS THAT:

1.The Application filed on 11 December 2018, as amended on 16 July 2019, be dismissed.

2.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $8,371.30.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE BLAKE:

  1. This is an application to review a decision made by the Immigration Assessment Authority (‘Authority’) on 15 November 2018. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the Applicant a Safe Haven Enterprise (subclass 790) visa (‘visa’). 

  2. For the reasons that follow, I have decided to dismiss the application for review.

    BACKGROUND

  3. The Applicant is an Iranian national. The Applicant arrived in Australia on 14 July 2013 as an unauthorised maritime arrival (Court Book (‘CB’) 214). He applied for the visa on 1 December 2016 (CB 97).

  4. On 8 May 2018, the Applicant was invited to attend a Protection Visa Interview (‘PV Interview’). On 31 May 2018, the Applicant attended the PV Interview (CB 140).

  5. On 14 September 2018, a delegate of the Minister (‘delegate’) refused to grant the Applicant the visa (CB 208).

  6. On 21 September 2018, the decision of the delegate was referred to the Authority for fast-track review under Part 7AA of the Migration Act 1958 (Cth) (‘Act’) (CB 232).

  7. On 15…

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Details
Case
[2024] FedCFamC2G 756
Decision Date

CaseChat Overview and Summary

In the case of GLP18 v Minister for Home Affairs, the applicant, an Iranian national, sought judicial review of a decision to refuse his application for a protection visa. The primary issue before the court was whether the decision-maker failed to consider the applicant’s claim or a component integer thereof regarding his fear of persecution due to his father’s association with the Shirazi Group. The applicant contended that the decision-maker did not properly consider his claim that he faced a well-founded fear of persecution or significant harm due to his father's association with the Shirazi Group, and instead only examined whether his father was a member of the group.

The court considered the applicant's claim and the decision-maker’s response to it. The applicant's representative had raised the claim in an email prior to the protection visa interview, stating that the applicant's father was associated with the Shirazi Group and travelled to Iraq with the group for religious events. During the interview and in subsequent submissions, the applicant further elaborated on his father's involvement with the group and the risks he faced due to this association. The decision-maker noted the applicant's claim but ultimately concluded that the father's role with the Shirazi Group was not relevant to the applicant's claims for protection. The Authority, in reviewing the decision, also summarised and addressed the claim, finding it unsubstantiated due to lack of evidence and credibility concerns.

The court found that the decision-maker had indeed considered the claim as advanced by the applicant, including the implications of his father’s association with the Shirazi Group. The court concluded that the decision-maker properly evaluated the evidence and the credibility of the applicant's claims, and therefore, there was no jurisdictional error. The application for judicial review was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons that follow, I have decided to dismiss the application for review.BACKGROUND The Applicant is an Iranian national. The Applicant arrived in Australia on 14 July 2013 as an unauthorised maritime arrival (Court Book (‘CB’) 214). He applied for the visa on 1 December 2016 (CB 97). On 8 May 2018, the Applicant was invited to attend a Protection Visa Interview (‘PV Interview’). On 31 May 2018, the Applicant attended the PV Interview (CB 140). On 14 September 2018, a delegate of the Minister (‘delegate’) refused to grant the Applicant the visa (CB 208). On 21 September 2018, the decision of the delegate was referred to the Authority for fast-track review under Part 7AA of the Migration Act 1958 (Cth) (‘Act’) (CB 232). On 15 November 2018, the Authority affirmed the decision not to grant the Applicant the visa (CB 246). The Applicant filed his application for judicial review in this Court on 11 December 2018. The application was accompanied by an affidavit of the Applicant. The Applicant subsequently filed an Amended Application on 16 July 2019 (‘Application’). The Applicant relied on the Application and written submissions. The Minister relied on his written submissions. The Minister also prepared a Court Book containing the relevant materials that I have had regard to. THE APPLICATIONGrounds of Review The Application contains four Grounds of Review. The Applicant only presses Ground 4, and has abandoned Grounds 1 – 3. Ground 4 of the Application is as follows:4.The IAA fell into jurisdictional error in failing to consider and deal with a claim or a component integer thereof. Particularsa) There was a claim or component integer thereof before the IAA to the effect that the Applicant faced a well founded fear of persecution or significant harm by virtue of the Applicant's father being associated or involved with, or being perceived as being associated or involved with, with the Shirazi Group;b) The IAA actually or constructively failed to consider and deal with this claim. It only considered whether the Applicant's father was a member of the Shirazi Group, and failed to make findings as to and deal with whether he was associated or involved with the group (or perceived as such) or the implications thereof as to the Applicant's claim. THE CLAIM ADVANCED BY THE APPLICANT The claim referred to in Ground 4 above has its genesis in, and was first raised by, the Applicant’s representative in an email on 30 May 2018, immediately prior to the PV Interview. In that email, the Applicant’s representative relevantly stated:[the Applicant] has also instructed:…but [ his] father travels to Iraq approximately two or three times per year generally for religious occasions and as part of the Shirazi Group. We are instructed that the Shirazi Group members travel as a group in a bus and assist [the Applicant’s] father to cross the border. Following the email above, and the Applicant’s attendance at the PV Interview, the Applicant’s representative submitted post-interview submissions on 14 June 2018 (‘post-interview submissions’). In that document, the Applicant made the following claim: As noted at Interview, [the Applicant’s] father, [F], is a member of the Shirazi Group. [the Applicant] explained that his father, and at times his brother and mother, travel for short periods to Iraq from Iran with the Shirazi Group for religious events. We are instructed that [the Applicant’s] father is involved in organising community events for the Shirazi Group. We submit that while the Applicant is not a member or supporter of the Shirazi Group himself, he is at risk of significant harm in Iran due to his imputed political belief as being opposed to the Iranian government, given his family’s and particularly his father’s involvement.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The delegate dealt with the claim as follows:(a)the delegate noted that the Applicant:(i)claims to continue to fear harm in Iran because of his father’s involvement in the Shirazi Group;(ii)submitted photographs of his father in the company of other individuals;(iii)claims that about two to three times every year, his father travels between Iran and Iraq with the Shirazi Group, whose members assist the Applicant’s father to cross the border;(iv)stated that his father’s role with the Shirazi Group is to film religious activities, and that the group travels together in a bus; and(b)the delegate ultimately did not accept the Applicant’s father’s role with the Shirazi Group is of any relevance to the Applicant’s claims for protection.THE DECISION OF THE AUTHORITY The Authority commenced by summarising the Applicant’s claims at paragraphs [5] and [8] of its reasons. At paragraph [5], the Authority stated the Applicant’s claims were that ‘his father is a member of the Shirazi Group, who opposes the Iranian regime and Iranian clerical establishment. His father is helped by the Shirazi Group to travel to Iraq 2- 3 times each year via bus for religious occasions’. At paragraph [8], the Authority in relation to the Applicant’s claims made in writing on 30 May 2018 noted ‘his father is a member of the Shirazi Group and he travels with them to Iraq two to three times per year for religious occasions. The Shirazi Group provides a bus and assists his father to travel across the border’. The Authority then dealt with the claim at paragraphs [29]-[32] as follows: 29.The applicant claims that due to his father’s membership of the Shirazi Group, which opposes the Iranian government, he may be imputed to hold the same political belief and this would result in him being at risk of harm in Iran. The applicant does not claim to be a member of the Shirazi Group. The applicant did not raise this as a claim until May 2018, the day prior to his protection visa interview. 30.Four photographs were provided by the applicant, which he claims include his father in the company of Ayatollah Sadiq Hussaini Shirazi and Hossein Shirazi of the Shirazi Group. These four photographs appear to be from the same occasion. Three of the photographs show a man in a light blue business shirt seated with a person who is said to be Ayatollah Sadiq Hussaini Shirazi. The fourth photograph shows the same man in the light blue shirt seated near a person who is said to be Hossein Shirazi. There is no other evidence before me to confirm the male person in the light blue business shirt in the aforementioned photographs is the applicant’s father or that if it is him, that he is a member of the Shirazi Group. Merely being photographed in the presence of a senior member of the Shirazi Group does not prove membership of the group.31.The applicant claimed his father was banned from leaving Iran and he thought this was because of his father’s involvement in the Shirazi Group. There is no other evidence before me to support the applicant’s claim that his father is banned from leaving Iran, or if that if he is it is because he is a member of the Shirazi Group. Furthermore, the country information does not indicate that a person would be banned from leaving Iran purely because they are a member of the Shirazi Group.32.On the basis of the lack of evidence provided by the applicant in support of this claim and the fact that it was raised quite late in the application process, combined with the concerns stated above about the credibility of the information the applicant continues to rely on to support his claims, I do not accept that the applicant’s father is a member of the Shirazi Group.CONSIDERATION

Ratio Decidendi

Legal Principle Established

The Authority then dealt with the claim at paragraphs [29]-[32] as follows: 29.The applicant claims that due to his father’s membership of the Shirazi Group, which opposes the Iranian government, he may be imputed to hold the same political belief and this would result in him being at risk of harm in Iran. The applicant does not claim to be a member of the Shirazi Group. The applicant did not raise this as a claim until May 2018, the day prior to his protection visa interview. 30.Four photographs were provided by the applicant, which he claims include his father in the company of Ayatollah Sadiq Hussaini Shirazi and Hossein Shirazi of the Shirazi Group. These four photographs appear to be from the same occasion. Three of the photographs show a man in a light blue business shirt seated with a person who is said to be Ayatollah Sadiq Hussaini Shirazi. The fourth photograph shows the same man in the light blue shirt seated near a person who is said to be Hossein Shirazi. There is no other evidence before me to confirm the male person in the light blue business shirt in the aforementioned photographs is the applicant’s father or that if it is him, that he is a member of the Shirazi Group. Merely being photographed in the presence of a senior member of the Shirazi Group does not prove membership of the group.31.The applicant claimed his father was banned from leaving Iran and he thought this was because of his father’s involvement in the Shirazi Group. There is no other evidence before me to support the applicant’s claim that his father is banned from leaving Iran, or if that if he is it is because he is a member of the Shirazi Group. Furthermore, the country information does not indicate that a person would be banned from leaving Iran purely because they are a member of the Shirazi Group.32.On the basis of the lack of evidence provided by the applicant in support of this claim and the fact that it was raised quite late in the application process, combined with the concerns stated above about the credibility of the information the applicant continues to rely on to support his claims, I do not accept that the applicant’s father is a member of the Shirazi Group.CONSIDERATION The Applicant submits that he made the claim, and that the Authority did not deal with his claim. He says that he made a claim either expressly, or it arose from the material, that his well-founded fear of persecution arose from his family’s travel with the Shirazi Group for the purpose of attending religious events with them, from his father’s involvement with the group in assisting them and filming for them, and from the Iranian Government’s interest in prosecuting supporters of the group. The Applicant says that instead of dealing with this claim, the Authority only dealt with that part of the claim that his father was a member of the Shirazi Group. The Applicant submits that by dealing only with his father’s membership of that group, the Authority failed to deal with the component integers of the claim.